Failing to Follow POLST Is Medical Malpractice

Clinicians at the University of Rochester resuscitated Donald Tuohey contrary to his MOLST. His family successfully litigated a medical malpractice action against the hospital, resulting in a jury verdict for money damages. 

This week, the Appellate Division reversed that judgment because the plaintiffs' expert witnesses failed to introduce evidence on standard of care. Consequently, the jury had no basis to find breach.

But the court rejected a range of other defense arguments. Specifically, the court ruled that plaintiffs could sue for medical malpractice as opposed to “wrongful life.” Plaintiffs do not need an "explicit statute creating a private cause of action for the violation of a MOLST." Furthermore, the court rejected the argument that "there can be no cause of action for violating a MOLST in an emergency situation." And the court rejected a claim of statutory immunity.

In short, while the plaintiffs lost this case on appeal, that was because of the evidence presented at trial. The law is clearly on their side and the side of other patients with advance directives and POLSTs.